Date:
20130228
Docket:
IMM-6115-12
Citation:
2013 FC 206
Ottawa, Ontario,
February 28, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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FATIHA ALI AMIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by an immigration officer (the officer) of the High Commission of
Canada in Nairobi, Kenya dated April 11, 2012, wherein the applicant’s
permanent residence application was refused. The officer’s decision was based
on the finding that the applicant and her spouse and daughters did not meet the
requirements to be members of the Convention refugee abroad class or members of
the humanitarian protected persons abroad designated class.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred for redetermination by a
different immigration officer.
Background
[3]
The
applicant and her family are originally from Ethiopia. The applicant was
married once before her current marriage. Her former spouse is the father of
her two daughters. The applicant married her current spouse in 2010.
[4]
The
applicant states that she fled Ethiopia because of her ex-husband’s political
involvement. The ex-husband was allegedly wanted by police due to his Oromo
ethnicity and his support for the Oromo Liberation Front (OLF). The applicant
claims that in 1999, she was detained by police for one month because they could
not find her (former) husband and that during that time, she was physically and
sexually abused. Once released, the applicant was required to sign in with the
police daily for two weeks, following which she and her children fled Ethiopia for Djibouti on foot.
[5]
The
applicant’s current husband states that in a 2004 election, he voted in support
of the OKKO (the Oromo Congress Party). However, the victory was denied by the
Ethiopian government and a group of students including the applicant’s spouse,
were detained. They were held for 15 days and then released with a warning. He
left for Djibouti following his release.
[6]
The
applicant applied from Djibouti to be admitted to Canada as a Convention
refugee along with her current husband and her daughters. The applicant and her
husband were interviewed on March 21, 2012, at which time the applicant gave
contradictory evidence about her ex-husband. The applicant first stated that
he was detained in 1999 in Ethiopia, disappeared after his release and that she
did not know if he was dead or alive. The applicant then stated that he
reappeared in Djibouti and that they divorced in 2005 because he was abusive
and taking khat. When asked by the officer about this discrepancy, the
applicant gave no response and then when asked if she would be able to get his
consent for their two daughters to travel to Canada, she answered that he had
disappeared from Djibouti after their divorce.
[7]
The
applicant also submitted an Attestation from ONARS (the Office National
D’Assistance Aux Réfugiés et Sinistrés) issued in 2003 and her husband’s 2004
ONARS Attestation Provisoire which verified their refugee status. The officer
expressed concern about the authenticity of the Attestations and asked if he
could verify the documents with ONARS. The applicant and her spouse agreed and
on March 28, 2012, the officer made an entry into the CAIPS notes stating
“Verification conducted: ONARS confirmed that the Attestations of PA and spouse
were not genuine.” The officer’s decision to deny the application was rendered
the same day and the decision was communicated to the applicant by letter on
April 11, 2012.
Officer’s Decision
[8]
In
the April 11, 2012 letter, the officer stated that the applicant had provided
vague and limited information about her ex-husband’s political involvement,
which was her alleged reason for fearing persecution in Ethiopia. He further noted that the Attestations filed in support of the application were not
genuine. As a result, he was not satisfied that the applicant’s evidence was
credible. The officer stated that the applicant had been given an opportunity
to respond to his concerns and that he had considered the response, but that his
decision remained unchanged. He therefore concluded that the applicant and her
family did not have a well-founded fear of persecution based on race, religion,
nationality, membership in a particular social group or political opinion.
[9]
In
the March 28, 2012 CAIPS notes, the officer stated that the applicant gave
vague answers about her ex-husband’s involvement with the OLF and that she
“could not say why she though [sic] he [her ex-husband] was an OLF
member except from his ethnicity”. The officer further noted the contradictory
evidence that the applicant gave about her ex-husband, as well as the evidence
that he had abused her. He concluded that because she was remarried and is no
longer in contact with her ex-husband, she did not appear to be a “woman at
risk.”
[10]
The
officer went on to note his concerns with the authenticity of the ONARS
Attestations that had been submitted, and the fact that his “concerns were
confirmed by the issuing authority of [those] kinds of documents.”
[11]
With
regard to the applicant’s contradictory evidence about her ex-husband, the
officer explained that it was possible that the applicant had meant that she
did not know if her ex-husband was alive after he disappeared for the second
time in Djibouti and gave her the benefit of the doubt for those
inconsistencies.
[12]
Nonetheless,
the officer’s other concerns remained and he concluded that given the vagueness
of her answers regarding the reason that she feared persecution and the
fraudulent documents submitted in support of the applicant’s status in Djibouti
and the time of her arrival there, there were strong credibility concerns about
the central elements of the claim. The officer was thus not satisfied that the
applicant’s fear of persecution due to alleged political opinions was well-founded.
[13]
The
applicant’s daughters’ claims were the same as their mother’s and thus failed
for the same reasons. The applicant’s spouse’s claim was also not found to be
credible and based on the information that he provided about his detention in Ethiopia and in light of the conditions there, the officer was not satisfied that the
spouse’s fear of persecution due to alleged political opinions was
well-founded.
Issues
[14]
The
applicant submits the following points at issue:
1. What is the
appropriate standard of review?
2. Did the officer
act unreasonably in failing to consider the Gender Guidelines when assessing
the applicant’s credibility?
3. Was the duty of
fairness breached by non-disclosure of extrinsic evidence and the absence of an
opportunity to respond?
Applicant’s Written Submissions
[15]
The
applicant submits that the officer failed to consider or apply the Gender
Guidelines and in particular, the Guideline that women from cultures where men
do not share the details of their activities with their female relatives may
not be able to explain the experiences of their male relatives. The officer
acted unreasonably in not having regard to the Gender Guidelines and the
cultural context in which the applicant found herself. As a result, the credibility
finding made by the officer, based in part on the lack of the applicant’s
knowledge of her ex-husband’s political activities, was perverse.
[16]
The
applicant further submits that, according to the CAIPS notes, somewhere between
the March 21, 2012 interview and the March 28, 2012 post-interview observations
recorded in the CAIPS notes, the officer received a communication from ONARS
about the applicant. However, that communication was never provided to the
applicant, nor was she given an opportunity to respond.
[17]
The
officer gave no consideration to the question of where and how the applicant
got the Attestations; if the applicant got the documents from ONARS, then she
cannot be faulted for them not being properly issued. Furthermore, the officer
stated that the applicant was given the opportunity to respond to his concerns,
but that did not happen, as the applicant learned that ONARS had confirmed the
officer’s concerns when she received a copy of the certified tribunal record. Finally,
there is only reference to the communication with ONARS in the CAIPS notes, but
the applicant still does not know what the nature of that communication was.
The applicant submits that in light of the fact that in both the refusal letter
and the Immigration Manual, the respondent allows for an applicant’s
opportunity to respond, there is a legitimate expectation that this procedure
would be followed.
[18]
The
applicant submits that, provided she was found credible, there are compelling
reasons arising out of past persecution; her sexual assault during detention in
particular, that should allow her to be found a Convention refugee.
Respondent’s Written Submissions
[19]
The
respondent submits that the applicant is asking the Court for a reassessment of
the evidence, which is not the proper function of the Court in a judicial
review.
[20]
The
respondent submits that none of the applicant’s claims were based on a fear of
persecution because of her gender; rather they were based on her ex-husband’s
alleged association with a political group. Therefore, there was no requirement
to apply the Guidelines. The applicant was asked about the nature of her
ex-husband’s political involvement, which was the alleged reason that she left Ethiopia and stated that she knew he supported the OLF because he was Oromo. The respondent
also notes that the applicant was asked during the interview whether any of her
family members had been involved as a member or supporter of a political party
or religious group and she responded in the negative. The officer’s assessment
of the applicant’s credibility was therefore reasonable.
[21]
With
regard to the alleged breach of procedural fairness, the respondent submits
that the officer expressed concerns about the Attestations at the outset of the
interview and that he asked if he could have the documents verified with ONARS.
There is no indication in the CAIPS notes that the applicant or her spouse gave
any response to the officer’s concerns and there was no ambiguity in the CAIPS
notes as to what the officer was concerned about. Contrary to the applicant’s
submissions, she and her spouse were aware during the interview process that
the validity of the Attestations was in question. The officer gave them ample
opportunity to provide an explanation and participate in a meaningful manner in
determining their claims by making them aware of this concern at the beginning
of the interview. There has therefore been no breach of procedural fairness.
Applicant’s Reply
[22]
The
applicant submits that the Gender Guidelines have four components, the first
two dealing with substantive grounds of prosecution, the second two dealing
with evidence and procedure. The respondent is effectively taking the position
that the Guidelines dealing with evidence and procedure can reasonably be
ignored and that the only part of the Guidelines that must be considered is the
substantive grounds or persecution. However, the applicant argues, there is
nothing in the jurisprudence to justify this division and the respondent’s
proposition is artificial.
[23]
The
applicant accepts that the Guidelines do not need to be mentioned if they are
followed in substance, but where, as here, there is a departure from the
Guidelines, there is a legal duty to explain why they are not being followed.
The applicant notes Sy v Canada (Minister of Citizenship and Immigration),
2005 FC 379, [2005] FCJ No 462, which she states stands for the proposition
that the necessity of taking into account cultural considerations when
assessing the credibility of a female applicant is not limited to gender-based
claims.
[24]
The
applicant submits that the duty of disclosure of extrinsic evidence with an
opportunity to respond is not limited to extrinsic evidence about which no
notice has been given that it would be sought. The mere fact that the applicant
was told that her documents would be verified does not tell her what the result
of the verification would be. It is impossible for the applicant to respond to
the results of the verification simply because she knew there was verification
and the ability for her to respond to a third party document she had to
actually see the document or at least have a meaningful summary of its
contents. The mere fact of knowing that such a document will come into
existence is not sufficient to give the applicant a meaningful opportunity to
respond.
Analysis and Decision
[25]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[26]
This Court has reviewed the failure to consider the Gender Guidelines on a reasonableness standard (see MDGD
v Canada (Minister of Citizenship and Immigration), 2011 FC 855 at
paragraph 12, [2011] FCJ No 1050; and Cornejo v Canada (Minister of Citizenship and Immigration), 2010 FC 261,
at paragraphs 16 to 18, [2010] FCJ No 295). In reviewing
the officer’s decision on the standard of reasonableness, the Court should not
intervene unless the board came to a conclusion that is not transparent,
justifiable and intelligible and within the range of acceptable outcomes based
on the evidence before it (see Dunsmuir above, at paragraph 47 and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59,
[2009] 1 S.C.R. 339). As the Supreme Court held in Khosa above, it is not
up to a reviewing court to substitute its own view of a preferable outcome, nor
is it the function of the reviewing court to reweigh the evidence (at
paragraphs 59 and 61).
[27]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Khosa above, at paragraph 43). No deference is
owed to decision makers on these issues (see Dunsmuir above, at
paragraph 50).
[28]
I
wish to now deal with Issue 3.
[29]
Issue
3
Was the duty of fairness
breached by non-disclosure of extrinsic evidence and the absence of an
opportunity to respond?
The case law from this Court
teaches that generally, where an officer has extrinsic information of which the
applicant is unaware, the applicant should be given the opportunity to disabuse
the officer of any concerns arising from that evidence (see Huang v
Canada (Minister of Citizenship and Immigration), 2012 FC 145 at paragraph
7, [2012] FCJ No 203; and Gu v Canada (Minister of Citizenship and
Immigration), 2010 FC 522 at paragraphs 23 to 25, [2010] FCJ No 624). Extrinsic
evidence which was not put to an applicant and was found to have violated an
applicant’s right to procedural fairness has included fraudulent client
contracts (see Chen v Canada (Minister of Citizenship and Immigration), 2007
FC 41, [2007] FCJ No 65), evidence that was supplied by a senior manager at an
applicant’s former place of employment (see Kniazeva v Canada (Minister of
Citizenship and Immigration), 2006 FC 268, [2006] FCJ No 336) and a
negative business proposal assessment that had been provided by the Province of
Ontario (see Muliadi v Canada (Minister of Employment and Immigration),
[1986] 2 FC 205 (CA)). These were all cases in which the extrinsic evidence
considered was central to the officers’ decisions and the applicants were not
given the chance to address it. Conversely, in Pan v Canada (Minister of
Citizenship and Immigration), 2010 FC 838, [2010] FCJ No 1037, the
officer’s reliance on evidence that a particular accounting firm had produced
the applicant’s financial statements was not found to breach procedural
fairness because the officer did not rely on it in his final decision.
[30]
In
the current case, the applicant and her spouse were given notice during the
interview of the concerns that the officer had about the authenticity of the
ONARS Attestations. Specifically, in the March 21, 2012 CAIPS notes, the
officer recorded that he “expressed concerns regarding the documents and asked
PA and spouse if [he] could have the documents verified with ONARS and they
said yes” and later on that he “had expressed [his] concerns about the
authenticity of the documents submitted at the beginning of the interview.”
[31]
Later,
in the CAIPS notes recorded on March 28, 2012 the officer stated “verification
conducted: ONARS confirmed that the Attestations of PA and spouse were not
genuine” and that he “expressed concerns about the document and [his] concerns
were confirmed by the issuing authority of these kinds of documents.” The
alleged inauthenticity of the Attestations then formed part of the officer’s
reasons for denying the applicant’s claim.
[32]
The
respondent argues that the officer made the applicant and her spouse aware of
his concerns at the outset of the interview on March 21, 2012, giving them
ample opportunity to provide an explanation and participate in a meaningful
manner in determining their claim. While this is true, it is also not the
point. The real issue is the fact that the officer then allegedly received
evidence from ONARS that was used in part to deny the applicant’s claim, which
the applicant has not had an opportunity to respond to. Indeed, it is unclear
from the record what kind of communication the officer had from ONARS and how
ONARS was able to confirm that the Attestations were not valid. The entries in
the CAIPS notes which make it impossible to discern what case the applicant had
to make (particularly given that she was not even made aware of this new evidence)
and for this Court to fully assess the reasonableness of the decision. Pursuant
to the jurisprudence noted above, the officer breached procedural fairness and
the decision should be returned for redetermination by a different officer.
[33]
Because
of my finding on Issue 3, I need not deal with Issue 2.
[34]
The
applicant submitted the following two proposed questions of general important
for my consideration for certification:
1. Is
the legal duty to consider the Gender Guidelines in appropriate cases limited,
in vas office applications for membership in the Convention refugee abroad
class or a member of the humanitarian protected persons abroad designated
class, to cases where the application is based on fear of persecution because
of gender?
2. In
a visa office application for membership in the Convention refugee abroad class
or a member of the humanitarian protected persons abroad designated class, when
the visa office considers extrinsic evidence, is the duty of fairness respected
by disclosure of the intent to seek extrinsic evidence and the potential source
without disclosure of the extrinsic evidence obtained with an opportunity to
respond?
[35]
The
respondent did not wish to submit a proposed question but opposed the
certification of the questions proposed by the applicant.
[36]
I
am not prepared to certify either question as they do not contemplate issues of
broad significance or general application (see Canada (Minister of
Citizenship and Immigration) v Liyanagamage (1994) 176 NR 4 (FCA), 91994]
FCJ No 1637 at paragraph 4).
[37]
The
judicial review is allowed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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139. (1) A
permanent resident visa shall be issued to a foreign national in need of
refugee protection, and their accompanying family members, if following an
examination it is established that
. . .
(e) the
foreign national is a member of one of the classes prescribed by this Division;
145. A
foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention refugee.
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139. (1) Un
visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
.
. .
e) il
fait partie d’une catégorie établie dans la présente section;
145. Est
un réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
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